University of San Diego Digital USD University of San Diego Public Law and Legal Law Faculty Scholarship Theory Research Paper Series September 2004 Supermajority Rules and the Judicial Confirmation Process Michael B. Rappaport University of San Diego School of Law, [email protected] John O. McGinnis Northwestern University School of Law Follow this and additional works at: http://digital.sandiego.edu/lwps_public Part of the Constitutional Law Commons, Courts Commons, Judges Commons, Jurisprudence Commons, and the Public Law and Legal Theory Commons Digital USD Citation Rappaport, Michael B. and McGinnis, John O., "Supermajority Rules and the Judicial Confirmation Process" (2004). University of San Diego Public Law and Legal Theory Research Paper Series. 13. http://digital.sandiego.edu/lwps_public/art13 This Article is brought to you for free and open access by the Law Faculty Scholarship at Digital USD. It has been accepted for inclusion in University of San Diego Public Law and Legal Theory Research Paper Series by an authorized administrator of Digital USD. For more information, please contact [email protected]. Rappaport and McGinnis: SUPERMAJORITY RULES AND THE JUDICIAL CONFIRMATION PROCESS By John O. McGinnis & Michael B. Rappaport Table of Contents Introduction ............................................................1 I. Senate Supermajority Rule for Confirmations ..............................4 A. Two threshold issues .............................................4 1. The Rise of the Filibuster in Judicial Nominations ....................4 2. The Mild Supermajoritarian Effect of the Current Confirmation Rules. ....7 B. The Benefits of an Express Supermajority Rule for the Confirmation of Judges ..................................................9 1. The Cost Benefit Framework for Analyzing Supermajority Rules ........9 2. Improving the Quality of Judges Under a Supermajority ConfirmationRule 10 a. Originalism .........................................11 b. Realism ...........................................15 c Possible Mitigating Factors for Judicial Entrenchment ........23 d. Protecting minority rights ..............................26 i Published by Digital USD, 2004 1 University of San Diego Public Law and Legal Theory Research Paper Series, Art. 13 [2004] C. Costs of an Express Supermajority Confirmation Rule for the Confirmation of Judges ......................................29 1. Decreased Quality ........................................29 a) Decreases in the collective quality of the judiciary as opposed to individual quality. ......................29 b) Decreases in Quality from Reduction of Presidential Accountability34 2. Holdout Costs ............................................35 3. Substitution Costs .........................................36 D. Long Term Changes in the Quantity of Judges ........................38 E. The Problem of Transition .......................................39 F. Summing up the Calculus of the Supermajority Confirmation Rule .......41 II. Committee Supermajority Rule to Assure Hearings. .....................42 Conclusion ..................................................................48 ii http://digital.sandiego.edu/lwps_public/art13 2 Rappaport and McGinnis: SUPERMAJORITY RULES AND THE JUDICIAL CONFIRMATION PROCESS By John O. McGinnis* & Michael B. Rappaport** In this essay we consider the policy wisdom of two possible uses of supermajority rules to improve the confirmation process and the quality of judges appointed through that process. We first look at an express Senate rule that would require a supermajority for confirmation of judicial nominees. For instance, the rule might require a supermajority of sixty votes.1 As we discuss below, an implicit Senate supermajority rule for judicial confirmations may in fact already be emerging through the use of the filibuster. We provide the first comprehensive calculus to assess the costs and benefits of an express Senate supermajority rule for confirmations, using a formula for evaluating supermajority rules which we have advanced elsewhere.2 In our previous work, we have argued for more stringent supermajority * Class of 1940 Research Professor, Northwestern University Law School ** University Professor, University of San Diego School of Law. Both authors would like to thank Jack Balkin, Nelson Lund and Mark Movsesian for their comments. 1The rule could be adopted either as a legislative rule or as a constitutional amendment. A constitutional amendment would provide the rule with greater permanence. Thus, if a supermajority rule is beneficial, a constitutional amendment would furnish the better foundation for the rule. 2 See, e.g.,John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385, 418-422 (2003); John O. McGinnis & Michael B. Rappaport, The Supermajoritarian Constitution, 80 TEX. L. REV. 703, 728-743 (2002); John O. McGinnis & Michael Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. & MY. L. REV. 365, 399- 441 (1999). 1 Published by Digital USD, 2004 3 University of San Diego Public Law and Legal Theory Research Paper Series, Art. 13 [2004] rules in a variety of contexts to improve political governance.3 Nevertheless, we do not believe that supermajority rules are always beneficial. In this case, the beneficence of an express Senate supermajority rule for confirmations is a difficult question, involving many subtle considerations and depending both on assumptions about the nature of jurisprudence and the level of judges– Supreme Court or lower federal courts-- to whom it would be applied. On the realist assumption that judges essentially vote their preferences on constitutional issues, we believe that an express Senate supermajority rule for confirmations of Supreme Court Justices would probably be beneficial in the long term but only if the rule itself was adopted by a bipartisan consensus and applied prospectively to future Presidents. In contrast, if one believes that the goal of appointing justices who will adhere as closely as possible to the original understanding of the Constitution is desirable and possible, a supermajority rule would probably not be beneficial in current circumstances because supermajority rules encourage appointments with bipartisan support and one party is generally opposed to orginalism. On realist assumptions about judging, the best argument for an express Senate supermajority rule for Supreme Court confirmations is that it tempers the countermajoritarian difficulty that has grown more acute as justices have generated a large body of precedent that has departed from the original understanding of the Constitution. A supermajority rule would require that justices empowered to entrench new principles through judicial amendments of the Constitution must enjoy a substantial consensus of support before they can take office. Because of this consensus, the decisions of such 3 See Supermajority Rules as a Constitutional Solution, supra note x, at 422-424. 2 http://digital.sandiego.edu/lwps_public/art13 4 Rappaport and McGinnis: judges would enjoy greater legitimacy and would be less likely to systematically subvert majoritarian values. On the other hand, supermajority rules may lead to holdout and substantial delays in the Supreme Court nomination process. The delays could result in nominations being held up through elections, creating referenda on particular nominees and unduly politicizing the selection process. To help reduce these holdout costs, the adoption of a confirmation supermajority rule should occur by a consensus of the parties and be applied prospectively to a President whose identity was not known when the rule was adopted. If one party initiates a new supermajority rule through a unilateral decision to filibuster nominees of the President of the opposing party, the holdout costs are likely to be very high. This transition to a supermajority confirmation rule would generate high holdouts costs because the first Presidents operating under a novel and contested rule would be unlikely to change their behavior in response to an emerging supermajority norm. Thus, a supermajority rule applied without consensus would provoke bitter fights and lengthy delays. It would also create agency costs initially as a filibuster may be used to confuse the public about the real objectives of the filibustering majority. 4 4 In a series of articles we have already set out our position on the constitutionality of legislative supermajority rules. See John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995); John O. McGinnis & Michael B. Rappaport, The Rights of Legislators and Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 DUKE L.J. 327, 341 (1997); John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385 (2003). Briefly stated, our position is that each House of Congress has authority to pass legislative supermajority rules. But a majority of each House must retain the authority to repeal these rules, thus preventing a majority from entrenching its views against change. According to this view, the filibuster rule is constitutional except for that portion of the rule that allows changes in the filibuster to themselves be filibustered, thus threatening ultimate majority control over the content of legislative